40 Iowa 259 | Iowa | 1875
The evidence establishes the following-state of facts: In the month of June, 1868, Mr. Scarlett applied to the plaintiff, who was then a member of the banking firm of Moore & Mclntire, for the purpose of buying the land in controversy, if they had the agency. On being informed by plaintiff that they were not agents for the land, Scarlett said that Horace Everett, of Council Bluffs, was agent for the owner of the land. Plaintiff then examined and found the land in a printed list of lands for sale by Mr. Everett. Mr. Scarlett desired the plaintiff to buy the land for him at five dollars per acre. The plaintiff said he was going to Council Bluffs in a short time, and would see Mr. Everett and try and make the purchase. In a few days after this the plaintiff did see Mr. Everett, and bargained for the land as Scarlett desired him to do. About two weeks after this, Scarlett again called at the banking house^of Moore & Mcln-tire, did not find Moore in, but Mclntire was' there, and informed him that they had obtained the land for. him. In a few days thereafter Scarlett called again and paid one-half the purchase money for the land, and received a written contract for a deed upon the payment of the balance. Scarlett then inquired of plaintiff how much he charged for his services? “He-said, usually $20, but in this case $10 would do,” and Scarlett then paid the same.
The plaintiff resided in Page county where the business was transacted, Scarlett resided, and the land was situated, in Taylor county. Sometime in the month of July, 1869, a Mr. Farrell called at the banking house of Moore & Mclntire, and inquired if the deed to Scarlett for the land in controversy had been received by Moore & Mclntire. He was told by them that it liad not. The deed was afterwards received, being- sent by Evere't to Moore & Mclntire’s banking house, to be delivered by them to Scarlett on payment of the balance of the purchase money. On the 27th of August, 1869, Farrell again called, and plaintiff delivered the deed to him on receipt of the money due, which was remitted to Everett. In delivering the deed and receiving the last payment on the land, Moore & Mclntire both testify they were acting as agents of Mr. Ever
The evidence farther shows that neither plaintiff nor Mcln-tire had any knowledge, at the time they made the purchase for Scarlett, that there were. any tax liens on the land. The firm of Moore & Mclntire purchased the land at tax sale in October, 1868, and held the tax certificate at the time of the delivery of the deed to Scarlett, and did not make the fact known to him. In making such tax purchase this tract was not selected and purchased by itself, but was purchased at the same time with other lands as they were offered by the treasurer, regardless of the ownership, and without any inquiry, and paying no attention to the numbers, and at the time of the delivery of the deed to Scarlett, they had no knowledge that they then held a certificate for the purchase of the land at tax sale, except what was common to all persons from the records. They then held certificates of the same kind for from ten to twenty thousand acres, and their attention was not particularly called to this tract, until after the treasurer’s deed came into the hands of the plaintiff.
Upon these facts it is quite clear that the agency of the plaintiff, or of Moore & Mclntire, for the purchase of the land
It is also quite clear that the fact that the deed to Scarlett was sent by Everett to the banking house of Moore & Mcln-
It is equally clear that the plaintiff was not guilty of any fraud, in failing to disclose the fact of the tax purchase by
The decree of the court below will be reversed, and a decree entered for plaintiff in this court if he so elects, or the cause will be remanded for a decree to be entered in conformity with this opinion by the District Court.
REVERSED.